Law & Justice

Mumbai High Court Clarifies Pre‑Arrest Bail Restrictions for Minor Rape Cases

By Kanchan V. Chaudhari

The Bombay High Court ruled that the statutory bar on anticipatory bail for offences under Sections 65 and 70(2) of the Bharatiya Nyaya Sanhita (BNS) is not absolute. Justice MM Nerlikar explained that Section 482(4) of the Bharatiya Nagrik Suraksha Sanhita (BNSS) prohibits anticipatory bail only when a prima facie case exists for rape of a girl below 16 years or gang‑rape of a minor. The court noted that whether a prima facie case is present depends on the facts of each case, but it would not conduct a detailed analysis of the evidence, leaving a “very small window” for accused persons to seek bail.

The decision came after two labourers, accused of raping minors, approached the high court following district‑court refusals based on the BNSS provision. Their lawyer, DJ Sharma, argued that the bar could not be absolute, citing Supreme Court interpretations of similar restrictions in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; the Terrorist and Disruptive Activities (Prevention) Act, 1987; and the Unlawful Activities (Prevention) Act, 1967. The court accepted these arguments, noting that the Supreme Court had held that such restrictions do not completely exclude judicial jurisdiction when no prima facie case is established.

Government counsel and the court‑appointed lawyer for the survivors opposed the pleas, asserting that the section’s wording required strict construction and that it was added in 2018 to enhance protection for minors after brutal rape incidents. The high court agreed with the accused’s position, citing the Supreme Court’s interpretation of similar statutory limits.

Justice Nerlikar cautioned that courts should not broaden the scope by examining all grounds in ordinary anticipatory bail applications, as doing so would undermine the purpose of the statutory restriction and the legislature’s intent.